S.19 of Prevention of Corruption Act Cannot Be Declared Unconstitutional

8/12/2019 S.19 of Prevention of Corruption Act Cannot Be Declared Unconstitutional

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REPORTABLE

IN THE SUPREME COURT OF INDIACIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 305 OF 2007

Manzoor Ali Khan ... Petitioner (s)

Versus

Union of India & Ors. ... Respondent

(s)

J U D G E M E N T

Ad!"# $%&! G'* J.

1. This petition !" #a" of pu!li$ interest liti%ation sees

dire$tion to de$lare 'e$tion 1 of the Preention of *orruption

A$t 1++ (,P* A$t-) un$onstitutional and to dire$t prose$ution

of all $ases re%istered and inesti%ated under the proisions of

P* A$t a%ainst the politi$ians M..As M.Ps and /oern0ent

offi$ials #ithout san$tion as reuired under 'e$tion 1 of the

P* A$t.

2. A$$ordin% to the aer0ents in the #rit petition the

petitioner is a pra$tisin% ado$ate in the 'tate of 3a00u &

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Kash0ir. In the said 'tate seeral /oern0ent offi$ials hae

!een $har%ed for $orruption !ut in the a!sen$e of reuisite

san$tion the" $ould not !e prose$uted. Referrin% to seeral

instan$es in$ludin% those noti$ed !" this *ourt in arious

orders it is su!0itted that the proision for san$tion as a

$ondition pre$edent for prose$ution is !ein% used !" the

/oern0ent of India and the 'tate /oern0ents to prote$t

dishonest and $orrupt politi$ians and /oern0ent offi$ials. The

dis$retion to %rant san$tion has !een 0isused.

4. The petition refers to arious orders of this *ourt #here

in$u0!ents #ere indi$ted !ut not prose$uted for #ant of

san$tion. In Common Cause, a registered Society s.

Union of India & Ors. (15) 5 '** 64 *aptain 'atish

'har0a the then Minister for Petroleu0 and 7atural /as #as

held to hae a$ted in ar!itrar" 0anner in allottin% petrol pu0ps

!ut sin$e san$tion #as refused he $ould not !e prose$uted. In

Shiv Sagar Tiwari s. Union of India & Ors.(15) 5 '**

6 '0t. 'hiela Kaul the then Minister for 8ousin% and Ur!an

9eelop0ent /oern0ent of India #as indi$ted for 0ain%

ar!itrar" mala fideand un$onstitutional allot0ents !ut still she

$ould not !e prose$uted. In M.C. Mehta(Taj Corridor Scam)

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s.Union of India & Ors. (2::;) 1 '** 11: Ms. Ma"a#ati

the then *hief Minister of U.P. and 'hri 7asi0uddin 'iddiui the

then Minister for


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y or 'ith the sanction of the entral*overnment" of that *overnment+()in the case of a person 'ho is employedin connection 'ith the affairs of a ,tate and

is not removale from his office save y or'ith the sanction of the ,tate *overnment"of that *overnment+(c)in the case of any other person" of theauthority competent to remove him fromhis office.(-)here for any reason 'hatsoever anydout arises as to 'hether the previoussanction as re/uired under su0section (1)

should e given y the entral *overnmentor the ,tate *overnment or any otherauthority" such sanction shall e given ythat *overnment or authority 'hich 'ouldhave een competent to remove the pulicservant from his office at the time 'hen theoffence 'as alleged to have eencommitted.($)Not'ithstanding anything contained in

the ode of riminal Procedure" 19!$ (- of19!)"(a)no finding" sentence or order passed ya special 2udge shall e reversed or alteredy a court in appeal" confirmation orrevision on the ground of the asence of" orany error" omission or irregularity in" thesanction re/uired under su0section (1)"unless in the opinion of that court" a failureof 3ustice has in fact een occasionedtherey+()no court shall stay the proceedingsunder this 4ct on the ground of any error"omission or irregularity in the sanctiongranted y the authority" unless it issatisfied that such error" omission orirregularity has resulted in a failure of

3ustice+(c)no court shall stay the proceedingsunder this 4ct on any other ground and no

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http://indiankanoon.org/doc/1939502/http://indiankanoon.org/doc/574558/http://indiankanoon.org/doc/798493/http://indiankanoon.org/doc/181/http://indiankanoon.org/doc/1066990/http://indiankanoon.org/doc/339570/http://indiankanoon.org/doc/1457437/http://indiankanoon.org/doc/1939502/http://indiankanoon.org/doc/574558/http://indiankanoon.org/doc/798493/http://indiankanoon.org/doc/181/http://indiankanoon.org/doc/1066990/http://indiankanoon.org/doc/339570/http://indiankanoon.org/doc/1457437/


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court shall e&ercise the po'ers of revisionin relation to any interlocutory order passedin any in/uiry" trial" appeal or other

proceedings.

()5n determining under su0section ($)'hether the asence of" or any error"omission or irregularity in" such sanctionhas occasioned or resulted in a failure of

3ustice the court shall have regard to thefact 'hether the o3ection could and shouldhave een raised at any earlier stage in the

proceedings. 6&planation.7or thepurposes of this section"

(a)error includes competency of theauthority to grant sanction+()a sanction re/uired for prosecutionincludes reference to any re/uirement thatthe prosecution shall e at the instance of aspecified authority or 'ith the sanction of aspecified person or any re/uirement of asimilar nature.8

;. Duestion for $onsideration is #hether 'e$tion 1 of the P*

A$t is un$onstitutional and #hether an" further dire$tion is

$alled for in pu!li$ interest and for enfor$e0ent or funda0ental

ri%htsE

+. The issue raised in this petition is no lon%er res integra.

Reuire0ent of san$tion has salutar" o!>e$t of prote$tin% an

inno$ent pu!li$ serant a%ainst un#arranted and mala fide

prose$ution. Undou!tedl" there $an !e no toleran$e to

$orruption #hi$h under0ines $ore $onstitutional alues of

>usti$e eualit" li!ert" and fraternit". At the sa0e ti0e need

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http://indiankanoon.org/doc/1580016/http://indiankanoon.org/doc/564321/http://indiankanoon.org/doc/1100145/http://indiankanoon.org/doc/1580016/http://indiankanoon.org/doc/564321/http://indiankanoon.org/doc/1100145/


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1:. A%ain in a later order in the sa0e $ase i.e. /ineet

-arain & Ors.s. Union of India & $nr., reported in (1+) 1

'** 225 it #as o!sered as underB

11. hese principles of pulic life are ofgeneral application in every democracy andone is e&pected to ear them in mind 'hilescrutinising the conduct of every holder ofa pulic office. 5t is trite that the holders of

pulic offices are entrusted 'ith certainpo'ers to e e&ercised in pulic interest

alone and" therefore" the office is held ythem in trust for the people. 4ny deviationfrom the path of rectitude y any of themamounts to a reach of trust and must eseverely dealt 'ith instead of eing pushedunder the carpet. 5f the conduct amounts toan offence" it must e promptlyinvestigated and the offender against'hom a prima facie case is made out

should e prosecuted e&peditiously so thatthe ma3esty of la' is upheld and the rule ofla' vindicated. 5t is the duty of the 3udiciaryto enforce the rule of la' and" therefore" toguard against erosion of the rule of la'.

12.he adverse impact of lack of proity inpulic life leading to a high degree ofcorruption is manifold. 5t also has adverse

effect on foreign investment and fundingfrom the 5nternational


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04.hile dealing 'ith the issue relatingto maintainaility of a private complaint"the onstitution ;ench oserved: (4.=.

4ntulay vs. =amdas ,rini'as Nayak and

4nr. (19?) - , %##" para @)@. 5t is a 'ell0recognised principle ofcriminal 3urisprudence that anyone can setor put the criminal la' into motion e&cept'here the statute enacting or creating anoffence indicates to the contrary. hescheme of the ode of riminal Procedureenvisages t'o parallel and independentagencies for taking criminal offences to

court. 6ven for the most serious offence ofmurder" it 'as not disputed that a privatecomplaint can" not only e filed ut can eentertained and proceeded 'ith accordingto la'. >ocus standi of the complainant is aconcept foreign to criminal 3urisprudencesave and e&cept that 'here the statutecreating an offence provides for theeligiility of the complainant" y necessary

implication the general principle getse&cluded y such statutory provision.Numerous statutory provisions" can ereferred to in support of this legal positionsuch as (i) ,ection 1?!04 of the ,eaustoms 4ct" 1?!? (ii) ,ection 9! of the*old (ontrol) 4ct" 19@? (iii) ,ection @ ofthe 5mports and 6&ports (ontrol) 4ct" 19!(iv) ,ection -!1 and ,ection -!9 of the

5ncome a& 4ct" 19@1 (v) ,ection @1 of the7oreign 6&change =egulation 4ct" 19!$" (vi),ection @-1 of the ompanies 4ct" 19%@and (vii) ,ection !! of the 6lectricity(,upply) 4ct" 19?. his list is onlyillustrative and not e&haustive. hile,ection 19# of the ode of riminalProcedure permits anyone to approach the


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committed y pulic servant is notmaintainale" the court 'ould re/uire anunamiguous statutory provision and atangled 'e of argument for dra'ing a far0

fetched implication" cannot e a sustitutefor an e&press statutory provision.8

(emphasis supplied)

00. 5n vie' of the aforesaid 3udgment ofthe onstitution ;ench in 4ntulay case" itmust e held that the appellant has theright to file a complaint for prosecution of=espondent - in respect of the offences

allegedly committed y him under the 19??4ct.

56.D" after taking note of the 3udgmentof the Pun3a and Aaryana Aigh ourt in

2ag3it ,ingh v. ,tate of Pun3a" ,tate of;ihar v. P.P. ,harma" ,upt. of Police (;5) v.Eeepak ho'dhary" framed guidelines'hich 'ere circulated vide Fffice Frder No.

$1G%G#% dated 1-0%0-##%. he relevantclauses of the guidelines are e&tractedelo':

7 i)*rant of sanction is an administrativeact. he purpose is to protect the pulicservant from harassment y frivolous orve&atious prosecution and not to shield thecorrupt. he /uestion of giving opportunityto the pulic servant at that stage does not

arise. he sanctioning authority has only tosee 'hether the facts 'ould prima facieconstitute the offence.

ii) he competent authority cannotemark upon an in/uiry to 3udge the truthof the allegations on the asis ofrepresentation 'hich may e filed y theaccused person efore the sanctioningauthority" y asking the 5F to offer his

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comments or to further investigate thematter in the light of representation madey the accused person or y other'iseholding a parallel investigationGen/uiry y

calling for the recordGreport of hisdepartment.

H H H

vii) Ao'ever" if in any case" thesanctioning authority after consideration ofthe entire material placed efore it"entertains any dout on any point thecompetent authority may specify the dout'ith sufficient particulars and may re/uest

the authority 'ho has sought sanction toclear the dout. ;ut that 'ould e only toclear the dout in order that the authoritymay apply its mind properly" and not for the

purpose of considering the representationsof the accused 'hich may e filed 'hile thematter is pending sanction.

viii)5f the sanctioning authority seeks the

comments of the 5F 'hile the matter ispending efore it for sanction" it 'ill almoste impossile for the sanctioning authorityto adhere to the time0limit allo'ed y the,upreme ourt in Dineet Narain case.8

14. he aforementioned guidelines are inconformity 'ith the la' laid do'n y thisourt that 'hile considering the issue

regarding grant or refusal of sanction" theonly thing 'hich the competent authority isre/uired to see is 'hether the material

placed y the complainant or theinvestigating agency prima facie disclosescommission of an offence. he competentauthority cannot undertake a detailedin/uiry to decide 'hether or not theallegations made against the pulic servant

are true.8

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In $on$urrin% >ud%0ent it #as further o!seredB

23. oday" corruption in our country not

only poses a grave danger to the conceptof constitutional governance" it alsothreatens the very foundation of the 5ndiandemocracy and the =ule of >a'. hemagnitude of corruption in our pulic life isincompatile 'ith the concept of a socialistsecular democratic repulic. 5t cannot edisputed that 'here corruption egins allrights end. orruption devalues human

rights" chokes development andundermines 3ustice" lierty" e/uality"fraternity 'hich are the core values in ourPreamular vision. herefore" the duty ofthe court is that any anti0corruption la' hasto e interpreted and 'orked out in such afashion as to strengthen the fight againstcorruption. hat is to say in a situation'here t'o constructions are eminently

reasonale" the court has to accept the onethat seeks to eradicate corruption to theone 'hich seeks to perpetuate it.

84. he learned 4ttorney *eneral in thecourse of his sumission fairly admittedefore us that out of the total $19 re/uestsfor sanction" in respect of 1-@ of suchre/uests" sanction is a'aited. herefore" in

more than one0third cases of re/uest forprosecution in corruption cases againstpulic servants" sanctions have not eenaccorded. he aforesaid scenario raisesvery important constitutional issues as 'ellas some /uestions relating to interpretationof such sanctioning provision and also therole that an independent 3udiciary has to

play in maintaining the =ule of >a' and

common manBs faith in the 3ustice0delivering system. ;oth the =ule of >a' and

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e/uality efore la' are cardinal /uestions(sic principles) in our constitutional la's asalso in international la' and in this conte&tthe role of the 3udiciary is very vital. 5n his

famous treatise on 4dministrative >a'"Prof. ade 'hile elaorating the concept ofthe =ule of >a' referred to the opinion of>ord *riffiths 'hich runs as follo's:

C the 3udiciary accepts a responsiility forthe maintenance of the rule of la' thatemraces a 'illingness to overseee&ecutive action and to refuse to

countenance ehaviour that threatenseither asic human rights or the rule ofla'.8 I,ee =. v. Aorseferry =oad


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provision of 4rticle 1 are analogous to theprovisions of protective discrimination andthese protections must e construed verynarro'ly. hese procedural provisions

relating to sanction must e construed insuch a manner as to advance the causes ofhonesty and 3ustice and good governanceas opposed to escalation of corruption.

81. herefore" in every case 'here anapplication is made to an appropriateauthority for grant of prosecution inconnection 'ith an offence under the P

4ct it is the ounden duty of such authorityto apply its mind urgently to the situationand decide the issue 'ithout einginfluenced y any e&traneousconsideration. 5n doing so" the authoritymust make a conscious effort to ensure the=ule of >a' and cause of 3ustice isadvanced. 5n considering the /uestion ofgranting or refusing such sanction" the

authority is ans'erale to la' and la'alone. herefore" the re/uirement to takethe decision 'ith a reasonale dispatch isof the essence in such a situation. Eelay ingranting sanction proposal th'arts a veryvalid social purpose" namely" the purpose ofa speedy trial 'ith the re/uirement to ringthe culprit to ook. herefore" in this casethe right of the sanctioning authority" 'hile

either sanctioning or refusing to grantsanction" is coupled 'ith a duty.

82.he sanctioning authority must ear inmind that 'hat is at stake is the pulicconfidence in the maintenance of the =uleof >a' 'hich is fundamental in theadministration of 3ustice. Eelay in grantingsuch sanction has spoilt many valid

prosecutions and is adversely vie'ed inpulic mind that in the name of considering

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a prayer for sanction" a protection is givento a corrupt pulic official as a /uid pro /uofor services rendered y the pulic officialin the past or may e in the future and the

sanctioning authority and the corruptofficials 'ere or are partners in the samemisdeeds. 5 may hasten to add that thismay not e the factual position in this (siccase) ut the general demoralising effect ofsuch a popular perception is profound and

pernicious.

88. ;y causing delay in considering the

re/uest for sanction" the sanctioningauthority stultifies 3udicial scrutiny anddetermination of the allegations againstcorrupt official and thus the legitimacy ofthe 3udicial institutions is eroded. 5t" thus"deprives a citizen of his legitimate andfundamental right to get 3ustice y settingthe criminal la' in motion and thereyfrustrates his right to access 3udicial

remedy 'hich is a constitutionallyprotected right. 5n this connection" if 'elook at ,ection 19 of the P 4ct" 'e findthat no time0limit is mentioned therein. hishas virtually armed the sanctioningauthority 'ith unridled po'er 'hich hasoften resulted in protecting the guilty and

perpetuating criminality and in3ustice insociety.

86. 4rticle 1 must e construed as aguarantee against uncanalised andaritrary po'er. herefore" the asence ofany time0limit in granting sanction in,ection 19 of the P 4ct is not inconsonance 'ith the re/uirement of thedue process of la' 'hich has een readinto our onstitution y the onstitution

;ench decision of this ourt in


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34. 5 may not e understood to havee&pressed any dout aout theconstitutional validity of ,ection 19 of the

P 4ct" ut in my 3udgment the po'erunder ,ection 19 of the P 4ct must ereasonaly e&ercised. 5n my 3udgmentParliament and the appropriate authoritymust consider restructuring ,ection 19 ofthe P 4ct in such a manner as to make itconsonant 'ith reason" 3ustice and fair play.

39.5n my vie'" Parliament should consider

the constitutional imperative of 4rticle 1enshrining the =ule of >a' 'herein due

process of la'8 has een read into yintroducing a time0limit in ,ection 19 of theP 4ct" 19?? for its 'orking in a reasonalemanner. Parliament may" in my opinion"consider the follo'ing guidelines:

(a) 4ll proposals for sanction placed efore

any sanctioning authority empo'ered togrant sanction for prosecution of a pulicservant under ,ection 19 of the P 4ctmust e decided 'ithin a period of threemonths of the receipt of the proposal ythe authority concerned.

() here consultation is re/uired 'ith the4ttorney *eneral or the ,olicitor *eneral orthe 4dvocate *eneral of the ,tate" as thecase may e" and the same is not possile'ithin the three months mentioned inclause (a) aove" an e&tension of onemonth period may e allo'ed" ut there/uest for consultation is to e sent in'riting 'ithin the three months mentionedin clause (a) aove. 4 copy of the saidre/uest 'ill e sent to the prosecuting

agency or the private complainant to

1+


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.............................................3. + T.S. THA$UR ,

.............................................3. + ADARSH $UMAR GOEL ,

N- D#A%/%" 01* 20

2:

S.19 of Prevention of Corruption Act Cannot Be Declared Unconstitutional

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